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Idle No More deserves our thanks

Movement has exposed the Harper government’s lack of respect for aboriginal and treaty rights.

Members of the Gitxsan First Nation blockade a CN railroad track in Kitwanga, B.C., during nationwide Idle No Protests (Jan. 16, 2013) (Robin Rowland / THE CANADIAN PRESS)

By Kent McNeil

Sun., Jan. 27, 2013

A major concern of the Idle No More movement is Bill C-45, the omnibus budget bill enacted by the Parliament of Canada as the Jobs and Growth Act, 2012 . This bill received royal assent and became law on Dec. 14. In addition to giving legal effect to the Harper government’s budget of last year, this omnibus statute amends many other statutes, including the Indian Act, the Fisheries Act, the Canadian Environmental Assessment Act, and the Navigable Waters Protection Act (significantly renamed the Navigation Protection Act).

The Idle No More movement is right to be concerned. Bill C-45’s amendments to these acts could have significant negative impacts on aboriginal and treaty rights, especially rights to hunt and fish, that are recognized and affirmed by section 35 of the Constitution Act, 1982. If the amendments do infringe any of these rights, then, as decided by the Supreme Court of Canada in 1990 in the Sparrow case, to be valid the infringements must be justified by a strict test. The government of Canada would have to prove valid legislative objectives that are substantial and compelling, and show that the legislation and its implementation respect the Crown’s fiduciary obligations to the aboriginal peoples. Among other things, the government would need to show that its legislative objectives are being achieved with minimal infringement of the rights, and that the aboriginal peoples whose rights are being infringed were adequately consulted beforehand.

But even if a claimed aboriginal right has not yet been established in court or acknowledged in a treaty or modern land claims agreement, the Supreme Court in the Haida Nation decision in 2004 said that the Crown (the federal or provincial government, depending on the circumstances) is honour-bound to consult with aboriginal people whose claimed rights might be negatively affected. This duty to consult arises any time the Crown contemplates action that could have such an impact. Moreover, the duty is a legally enforceable constitutional obligation, so courts will compel the Crown to abide by it.

Where treaty rights are concerned, the Crown has a duty to consult even when it has authority under a treaty to undertake action that may affect the rights of the aboriginal parties. For example, in the Mikisew Cree case in 2005, the Supreme Court held that the federal Crown had to consult before building a winter road that would impact on the hunting and trapping rights of the Mikisew people. This was so despite the fact that the Crown had authority under the treaty to take up lands for a variety of purposes, including road-building.

Because Bill C-45’s amendments to other statutes could have negative impacts on treaty and aboriginal rights (both established and claimed), the government of Canada should have engaged in consultation with aboriginal peoples before presenting the bill to Parliament. As consultation does not appear to have taken place, the amendments are open to constitutional challenge. To the extent that they infringe those rights unjustifiably, in constitutional parlance the amendments would have to be “read down” to avoid that effect. Consequently, implementation of the amendments could result in a slew of litigation as aboriginal people turn to the courts to uphold their constitutionally protected rights.

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The Idle No More movement’s objections to Bill C-45 therefore have sound bases in Canadian constitutional law. We should all be grateful to Idle No More for exposing the Harper government’s lack of respect for aboriginal and treaty rights in pushing this Bill through Parliament. The undemocratic nature of an omnibus bill that amends numerous other statutes without adequate opportunity for debate and consideration by Parliament and its committees is bad enough, but the fact that the legislation probably violates Canada’s constitutional obligations to aboriginal peoples is even more disturbing.

Kent McNeil is a professor at Osgoode Hall Law School, York University.

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